http://www.freerepublic.com/focus/f-news/936353/posts
Scalia: What a massive disruption of the social order ... this ruling
entails.
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Read below one of the most brilliant defenses of traditional values,
morality and conventions that have governed civilization for the past 5000
years. Judge Scalia is a national treasure:
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Excerpted from his dissent in today's sodomy ruling:
I begin with the Court 's surprising readiness to recon- sider a decision
rendered a mere 17 years ago in Bowers v. Hardwick .I do not myself believe
in rigid adherence to stare decisis in constitutional cases;but I do believe
that we should be consistent rather than manipulative in invoking the
doctrine.Today 's opinions in support of reversal do not bother to
distinguish -or indeed,even bother to mention -the paean to stare decisis
coauthored by three Members of today 's majority in Planned Parent- hood
v.Casey.
There,when stare decisis meant preserva- tion of judicially invented
abortion rights,the widespread criticism of Roe was strong reason to
reaffirm it: "Where,in the performance of its judicial duties,the Court
decides a case in such a way as to resolve the sort of intensely divisive
controversy reflected in Roe [,] ....its decision has a dimension that the
resolu- tion of the normal case does not carry....[T ]o over- rule under
fire in the absence of the most compelling reason ...would subvert the Court
's legitimacy be- yond any serious question."505 U.S.,at 866 -867.
Today 's approach to stare decisis invites us to overrule an erroneously
decided precedent (including an "intensely divisive " decision))if:(1)its
foundations have been "eroded " by subsequent decisions,ante ,at 15;(2)it
has been subject to "substantial and continuing " criticism,,ibid.;and (3)it
has not induced "individual or societal reliance " that counsels against
overturning,ante ,at 16.
The problem is that Roe itself -which today 's majority surely has no
disposition to overrule -satisfies these conditions to at least the same
degree as Bowers.
I do not quarrel with the Court 's claim that Romer v. Evans ,517 U.S.620
(1996),"eroded "the "foundations "of Bowers ' rational--basis holding. See
Romer ,supra ,at 640 -643 (SCALIA,J.,dissenting).) But Roe and Casey have
been equally "eroded "by Washington v.Glucksberg ,521 U.S.702,721
(1997),which held that only fundamental rights which are "'deeply rooted in
this Nation 's history and tradition '"qualify for anything other than
rational basis scrutiny under the doctrine of "substantive due process."Roe
and Casey ,of course,subjected the restric- tion of abortion to heightened
scrutiny without even at- tempting to establish that the freedom to abort
was rooted in this Nation 's tradition.
We ourselves relied extensively on Bowers when we concluded,in Barnes v.Glen
Theatre, Inc.,501 U.S.560,569 (1991),that Indiana 's public inde- cency
statute furthered "a substantial government interest in protecting order and
morality,"ibid.,(plurality opinion); see also id.,at 575
(SCALIA,J.,concurring in judgment). State laws against bigamy,same-sex
marriage,adult incest,prostitution,masturbation,adultery,fornication,
bestiality,and obscenity are likewise sustainable only in light of Bowers '
validation of laws based on moral choices.. Every single one of these laws
is called into question by today 's decision;the Court makes no effort to
cabin the scope of its decision to exclude them from its holding.
The impossibility of distinguish- ing homosexuality from other traditional
"morals " offenses is precisely why Bowers rejected the rational-basis chal-
lenge."The law," it said,,"is constantly based on notions of morality,and if
all laws representing essentially moral choices are to be invalidated under
the Due Process Clause,the courts will be very busy indeed."478 U.S.,at 196.
What a massive disruption of the current social order, therefore,the
overruling of Bowers entails.Not so the overruling of Roe ,which would
simply have restored the regime that existed for centuries before 1973,in
which the permissibility of and restrictions upon abortion were determined
legislatively State-by-State.Casey ,however, chose to base its stare decisis
determination on a different "sort " of reliance.."[P ]eople,"it said,"have
organized intimate relationships and made choices that define their views of
themselves and their places in society,in reliance on the availability of
abortion in the event that contracep- tion should fail."505 U.S.,at 856.
This falsely assumes that the consequence of overruling Roe would have been
to make abortion unlawful.It would not;it would merely have permitted the
States to do so.Many States would unquestionably have declined to prohibit
abortion,and others would not have prohibited it within six months (after
which the most significant reliance interests would have expired).
Even for persons in States other than these,the choice would not have been
between abortion and childbirth,but between abortion nearby and abortion in
a neighboring State.
To tell the truth,it does not surprise me,and should surprise no one,that
the Court has chosen today to revise the standards of stare decisis set
forth in Casey .It has thereby exposed Casey 's extraordinary deference to
prece- dent for the result-oriented expedient that it is.
Texas Penal Code Ann.§21.06(a)(2003)undoubtedly imposes constraints on
liberty.So do laws prohibiting prostitution,recreational use of
heroin,and,for that mat- ter,working more than 60 hours per week in a
bakery. But there is no right to "liberty "under the Due Process
Clause,though today 's opinion repeatedly makes that claim.Ante ,at 6 ("The
liberty protected by the Constitu- tion allows homosexual persons the right
to make this choice ");ante ,at 13 ("'These matters ...are central to the
liberty protected by the Fourteenth Amendment '");ante , at 17 ("Their right
to liberty under the Due Process Clause gives them the full right to engage
in their conduct with- out intervention of the government ").
The Fourteenth Amendment expressly allows States to deprive their citi- zens
of "liberty,"so long as "due process of law " is provided: "No state shall
....deprive any person of life,liberty, or property,without due process of
law ."Amdt.14 (emphasis added).
Our opinions applying the doctrine known as "substan- tive due process "
hold that the Due Process Clause pro- hibits States from infringing
fundamental liberty inter- ests,unless the infringement is narrowly tailored
to serve a compelling state interest.Washington v.Glucksberg , 521 U.S.,at
721.We have held repeatedly,in cases the Court today does not overrule,that
only fundamental rights qualify for this so-called "heightened scrutiny "
protection -that is,rights which are "'deeply rooted in this Nation 's
history and tradition,'".
Finally,I turn to petitioners 'equal-protection challenge, which no Member
of the Court save JUSTICE O 'CONNOR, ante ,at 1 (opinion concurring in
judgment),embraces:On its face §21.06(a)applies equally to all persons.Men
and women,heterosexuals and homosexuals,are all subject to its prohibition
of deviate sexual intercourse with someone of the same sex.To be sure,§21.06
does distinguish be- tween the sexes insofar as concerns the partner with
whom the sexual acts are performed:men can violate the law only with other
men,and women only with other women.But this cannot itself be a denial of
equal protec-tion,since it is precisely the same distinction regarding
partner that is drawn in state laws prohibiting marriage with someone of the
same sex while permitting marriage with someone of the opposite sex.
The objection is made,however,that the antimiscegena- tion laws invalidated
in Loving v.Virginia ,388 U.S.1,8 (1967),similarly were applicable to whites
and blacks alike,and only distinguished between the races insofar as the
partner was concerned.In Loving ,however,we cor- rectly applied heightened
scrutiny,rather than the usual rational-basis review,because the Virginia
statute was "designed to maintain White Supremacy."Id.,at 6,11.A racially
discriminatory purpose is always sufficient to subject a law to strict
scrutiny,even a facially neutral law that makes no mention of race.See
Washington v.Davis , 426 U.S.229,241 -242 (1976).No purpose to discriminate
against men or women as a class can be gleaned from the Texas law,so
rational-basis review applies.That review is readily satisfied here by the
same rational basis that satisfied it in Bowers -society 's belief that
certain forms of sexual behavior are "immoral and unacceptable,"478 U.S.,at
196.This is the same justification that supports many other laws regulating
sexual behavior that make a distinction based upon the identity of the
partner - for example,laws against adultery,fornication,and adult incest,and
laws refusing to recognize homosexual marriage.
Today 's opinion is the product of a Court,which is the product of a
law-profession culture,that has largely signed on to the so-called
homosexual agenda,by which I mean the agenda promoted by some homosexual
activists di- rected at eliminating the moral opprobrium that has
traditionally attached to homosexual conduct.I noted in an earlier opinion
the fact that the American Association of Law Schools (to which any
reputable law school must seek to belong)excludes from membership any school
that refuses to ban from its job-interview facilities a law firm (no matter
how small)that does not wish to hire as a prospective partner a person who
openly engages in homo- sexual conduct.See Romer ,supra ,at 653.
One of the most revealing statements in today 's opinion is the Court 's
grim warning that the criminalization of homosexual conduct is "an
invitation to subject homosex- ual persons to discrimination both in the
public and in the private spheres."Ante ,at 14.It is clear from this that
the Court has taken sides in the culture war,departing from its role of
assuring,as neutral observer,that the demo- cratic rules of engagement are
observed.Many Americans do not want persons who openly engage in homosexual
conduct as partners in their business,as scoutmasters for their children,as
teachers in their children 's schools,or as boarders in their home.They view
this as protecting themselves and their families from a lifestyle that they
believe to be immoral and destructive.The Court views it as
"discrimination "which it is the function of our judg- ments to deter. So
imbued is the Court with the law profession 's anti-anti-homosexual
culture,that it is seem- ingly unaware that the attitudes of that culture
are not obviously "mainstream ";that in most States what the Court calls
"discrimination " against those who engage in homosexual acts is perfectly
legal;that proposals to ban such "discrimination " under Title VII have
repeatedly been rejected by Congress.
Let me be clear that I have nothing against homosexu- als,or any other
group,promoting their agenda through normal democratic means.Social
perceptions of sexual and other morality change over time,and every group
has the right to persuade its fellow citizens that its view of such matters
is the best.That homosexuals have achieved some success in that enterprise
is attested to by the fact that Texas is one of the few remaining States
that crimi- nalize private,consensual homosexual acts.But per- suading one '
s fellow citizens is one thing,and imposing one 's views in absence of
democratic majority will is some- thing else.I would no more require a State
to criminalize homosexual acts -or,for that matter,display any moral
disapprobation of them -than I would forbid it to do so. What Texas has
chosen to do is well within the range of traditional democratic action,and
its hand should not be stayed through the invention of a brand-new
"constitu- tional right " by a Court that is impatient of democratic
change.It is indeed true that "later generations can see that laws once
thought necessary and proper in fact serve only to oppress,"ante ,at 18;and
when that happens,later generations can repeal those laws.But it is the
premise of our system that those judgments are to be made by the people,and
not imposed by a governing caste that knows best.
The matters appropriate for this Court 's resolution are only three:Texas 's
prohibition of sodomy neither infringes a "fundamental right " ((which the
Court does not dispute), nor is unsupported by a rational relation to what
the Constitution considers a legitimate state interest,nor denies the equal
protection of the laws.I dissent.
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"[Liberty] considers religion as the safeguard of morality, and morality as
the best security of law and the surest pledge of the duration of freedom."
--Alexis de Toqueville
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